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How absenteeism can lead to dismissal

While many lawyers tell clients they cannot fire employees for illness, that advice is unfounded.

Photograph by: Jupiterimages
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Absenteeism continues to befuddle employers. And while many lawyers tell clients they cannot fire employees for illness, that advice is unfounded.

If an illness is enduring and the prognosis sufficiently bleak, the employee can be fired for frustration and be paid the statutory severance. Human rights legislation protects some illnesses. However, courts and tribunals do not consider employees with flu, a backache, workplace stress, etc. to be "disabled" so as to be protected by human rights legislation. They can be fired for continued absenteeism, although there may not be legal "cause" to not pay severance.

Even if the illness is one that could be protected, but it does not disable them from working, the employer can insist on attendance. Years ago, I had an assistant who was absent as often as she was at work. After hearing she awoke most mornings feeling ill, I suggested she take a shower, try to come to work and, if she got out her door and still felt ill, return home. I informed her she would be let go if her absenteeism continued. In the next two years, she missed only one day. Most short term disability policies permit absenteeism if the employee is "disabled," not because they don't feel 100 per cent.

Employers are obliged to accommodate disabled employees, and the employee is obliged to facilitate that accommodation. Employers should set up a meeting with absent employees to discuss accommodation. Refusing to attend such a meeting is cause for discharge without severance if they have been warned of this consequence. There are workers who prefer to receive disability or workers' compensation benefits to working, but employers can prevent that by requiring modified work.

It is not always clear what is culpable versus non-culpable absenteeism. An absence may appear to be culpable but turn out not to be, such as alcoholism. Similarly, what at first blush may appear to be non-culpable may prove to be misconduct or abuse of sick leave. Employers should require employees to call in sick well before the work day starts and speak to a designated supervisor or, if that person is not available, leave a number where they can be reached, failing which they should be disciplined. And if a pattern of suspicious absences develops, such as extending summer long weekends, they should be required to see a company physician.

Contrary to common belief, attendance management programs, which are used in workplaces where attendance is significant to success are not illegal. Such programs require a reasonable amount of the average absenteeism be met and if coachings and warnings fail, may result in dismissal. A decision involving Purolator Courier upheld its attendance management program because of the significance to the company of timely parcel delivery. As the law requires, its program considered each situation individually before dismissing.

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